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Online Symposium on Anticipatory Warrants:
The NYU Journal of Law & Liberty is hosting an online symposium tomorrow about anticipatory warrants and the Fourth Amendment, a hot topic these days in light of the pending U.S. Supreme Court case United States v. Grubbs. Participants in the symposium include James Adams, Brooks Holland, Andrew Leipold, Chris Slobogin, and myself.

  The Journal has just posted our introductory comments. Tomorrow, we will be blogging responses and additional comments throughout the day.

  Here is my introductory comment:
  One of the most specific commands in the Bill of Rights is the Fourth Amendment's prohibition against issuing warrants without probable cause: "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
  Over two hundred years after the Fourth Amendment was enacted, this prohibition still means what it says. Before a judge can issue a warrant, the warrant must be based on probable cause; must be supported by oath or affirmation; and must contain a particular description of the place to be searched and person or things to be seized.
  Anticipatory warrants are warrants that are issued when probable cause is anticipated but does not yet exist. The idea is that some future event may happen, and when it happens, probable cause likely will then exist. (I say "likely" because the magistrate judge never knows what else will happen in the future just before the event occurs. He will normally assume that nothing else of importance to the case happens before the future event occurs, but of course cannot know that with certainty.) The officers executing the warrant can wait for the event to happen, and then execute the warrant. If all goes as planned, probable cause will exist when the warrant is executed, even if it didn't exist when the warrant was issued.
  If we approach anticipatory warrants from the standpoint of normative policymaking, there are considerable arguments for and against anticipatory warrants. But for my introductory comment, I want to focus our attention on the Constitutional text. Am I missing something, or does the text of the Fourth Amendment answer this question for us? The text says that no warrants shall issue, but upon probable cause. In this context, it seems to me that "upon" means "following the establishment of" and "issue" means "signed by the judge." If that's right, doesn't the plain text of the Fourth Amendment prohibit anticipatory warrants?
  More tomorrow over at the NYU Journal of Law & Liberty.
logicnazi (mail) (www):
Couldn't you just think of an anticipatory warrant as a pre-warrant that only really becomes a warrant when the condition is achieved? Also I hardly think that the possibility of intervening events makes a difference, after all it is just *probable* cause and the judge could always be unware of mitigating circumstances.
2.23.2006 2:23pm
Defending the Indefensible:
Logic Nazi,

I suppose we could think a lot of things, but we'd have to ignore the letter and the spirit of the constitution and the bill of rights.

Or, if I accepted your reasoning, couldn't the requirement to describe specifically the persons or places to be searched also be spelled out later, you know, by the police officer at the time of execution? We could just issue them all a sheet of anticipatory warrants and a log book.
2.23.2006 2:33pm
Defending the Indefensible:
Prof. Kerr,

By the way, I just wanted to say that you are the main reason that I visit the VC. This isn't intended to flatter you or put myself in your good graces, and there are certainly times I've disagreed with things you've posted, but you've always given a thorough consideration of the issues you discuss and engaged constructively with commentators. I pointed out earlier today that a post by David Kopel had marked a low point for the VC. Your post above is precisely the opposite.
2.23.2006 2:42pm
Dave Hardy (mail) (www):
It seems to me that if fact X (presently not true and not proven) is required for probable cause to exist, then the applicant must at some time proven fact X has happened and is true before the warrant can issue. This is pretty simple. Otherwise, the critical fact is left for the judgment of the applicant officer, which is contrary to the 4th Amendment.

I should think one could apply for a manner of anticipatory warrant -- lay the general grounds before the judge in writing under oath -- and then, when fact X becomes true, telephone in, be sworn and attest to the evidence showing fact X is true (or that probable cause exists to believe it is true) and have the warrant issue. If the officers want to get very fancy, they do have cell phone faxes (altho I'm not aware of any strict requirement that the officer have the signed copy in hand anyway, that seems to be good procedure (if only so that the person being served knows the search is backed by law and how far it may go, but I suppose being shown a copy of the draft warrant with verbal affirmation it has been signed would meet this end).

But otherwise, the officer is left to judge the nature of the evidence. A UPS package arrived at the door -- aha, that must be the delivery! -- when that is a function for the magistrate.
2.23.2006 2:53pm
Cornellian (mail):
Is it really so obvious from the text that "issue" could only mean "the moment it is signed by the judge?" What if the judge wrote "this warrant shall issue upon occurrence of event X", then signed it. You might say this is a somewhat less plausible reading of "issue" but I don't think this is a slam dunk question just from reading the text.

Also, slight tangent here, but what does the Constitution have to say about the effect of being searched without a warrant? Does the Constitution mandate judicial carte blanche on the remedy question?
2.23.2006 3:22pm
Defending the Indefensible:
Dave Hardy,

Telephonic warrants as you describe are already common practice and are not particularly controversial.
2.23.2006 4:16pm
Armando (mail):
Professor Kerr:

Is damned honest. And that is a rare commodity these days.

Good intro comment.
2.23.2006 4:20pm
Milhouse (www):
What makes you think that "upon", in this context, means "after", rather than "on the grounds of"?

As for the objection that an anticipatory warrant leaves it to the judgment of the policeman whether the triggering event has actually occured, AIUI judges issuing warrants always take the police's word that the events they are describing have occured. There is never any sort of evidentiary hearing, where the truth of the police's assertions are tested; the police simply lay out the facts, and the judge, assuming these facts to be true, decides whether they constitute probable cause. If it turns out that the facts weren't as the police represented them, then the warrant can be retroactively invalidated.

So what difference does it make whether the judge says "since you tell me that X has occured, you may execute the search", or "if X should occur, you may execute the search"? Either way, it's the police, not the judge, who decide that X has occured.
2.23.2006 4:27pm
Justin (mail):
I'm actually in favor of at least the general form of anticipatory warrants - but then again, I'm not a textualist. Certainly if the text is ignored in this case, we can all point to many, many greater instances of the text ignored where the spirit has been violated as well, or at least the spirit was violated more significantly.

Kudos, Professor Kerr, for not abandoning your broader jurisprudence in order to satisfy your policy preferences. Too many on both sides are willing to do this these days. The Constitution is given the illusion of perfection at the cost of irrelevance.
2.23.2006 5:53pm
Steve:
What if "issue" means "take legal effect"? The problem with textual analysis arises when you redefine terms and then claim that your redefinition is equivalent to the "plain text." There is obviously more than one way to read "issue."
2.23.2006 7:20pm
OrinKerr:
Steve,

Courts have been talking about "issuing" warrants for at least 500 years. The word has never been used by legal authorities in the way you speculate, as far as I know: if you look at early English cases, Blackstone, early U.S. cases, and more recent U.S. cases, they all seem to use "issue" in the sense of "signed by the judge." Given that, I'm not sure why you would suggest that I am trying to "redefine" this term.

If you have a contrary authority, in which a warrant becomes "issued" when it begins to have legal effect, I very much look forward to seeing it.
2.23.2006 8:05pm
Milhouse (www):
Fine. Now, does Blackstone define "upon"? I understand "upon", in this context, to mean "based on", "on the grounds of", not as "subsequent to". Got any cites that specifically relate it to a temporal sequence?
2.23.2006 8:21pm
OrinKerr:
Milhouse,

I don't know. I'm curious, though: What difference does it make? If the constitution said, "no warrants shall issue, but based on probable cause," or "no warrants shall issue, but on the grounds of probable cause," doesn't that still prohibit anticipatory warrants?
2.23.2006 8:54pm
Steve:
But in all contexts other than anticipatory warrants, "signed by the judge" and "take legal effect" mean the exact same thing. We're in new territory here. If the plain text is an obvious barrier to fashioning anticipatory warrants, it's probably an obvious barrier to establishing an air force as well.
2.23.2006 9:07pm
OrinKerr:
Steve,

If I'm not mistaken, the better analogy would be if the Constitution said, "Congress shall not establish an Air Force." You would then be arguing that Congress can establish an Air Force, because we should not be tricked by the plain meaning of "Air Force."
2.23.2006 9:18pm
DWPittelli (mail) (www):
"So what difference does it make whether the judge says "since you tell me that X has occured, you may execute the search", or "if X should occur, you may execute the search"?"

Well, you can't you jail the cop for lying under oath in the second case, can you?
2.23.2006 9:40pm
Bob (mail):
Orin I think thats a bit of a cheapshot. A better anology would be if the Constitution said, "Congress shall not establish an Air Force." You would then be arguing that Congress can establish an Air Force, because we should not be tricked by the plain meaning of "establish."
2.23.2006 9:43pm
Defending the Indefensible:
I think, in fairness to Milhouse's argument, when he uses "based on" or "on the grounds of" he is indicating a hypothetical condition. Which is still begging the question.
2.23.2006 10:08pm
OrinKerr:
I don't follow, Bob.
2.23.2006 10:08pm
John Anderson:
Sheesh.

Anticipatory warrant? Just a 180 from "ex post facto", is it not? I vaguely recall the latter being used as one of the reasons for a war, someplace... Oh, yeah, it was the one ex-Pres Carter said meed not have happened since Australia became a country in its own right without a war.

Yes, we do sometimes do something of the sort with respect to certain people: the ones we laypeople call the criminally insane, locked out of society for fear of future actions on their part. Not sure why I consider that diferent, but I do.
2.24.2006 12:44am
Lev:

Anticipatory warrants are warrants that are issued when probable cause is anticipated but does not yet exist. The idea is that some future event may happen, and when it happens, probable cause likely will then exist.


Wouldn't that be a violation of The Rule Against Perpetuties?

Maybe it's just me, but I don't quite see how the mere occurence of an event determines that probable cause exists. Doesn't determination of probable cause require an assessment of the circumstances surrounding the event so as to be able to determine if the event actually means something in terms of legal process (seizure of evidence, arrest of person such that it and they are admissible in court), as opposed to being just "something that happened"?

If anticipatory warrants are ok, then everything the NSA does, and did, and more beside is ok.
2.24.2006 12:49am
DRS:
Prof. Kerr:
"Timing is everything," no matter what the government argues in Grubbs.
In its eventual holding in Grubbs, the court most likely will find anticipatory warrants are not unconstitutional. However, to limit inconsistent lower court rulings as to issuance or denial of ant. warrant applications and derivative evidentiary hearings, the court will most likely concur with the Ninth District and find that "time matters."
The Government's brief in Grubbs claims:
The Particularity Requirement Of The Fourth Amendment Does Not Apply To The Triggering Condition For An Anticipatory Search Warrant
...
Even if an anticipatory warrant that does not specify the triggering condition can be considered overbroad as to time (because, on its face, it authorizes a search before the triggering event has occurred), such a warrant is not facially invalid.


The government's brief further states in part:

No suppression would be required, however, as long as the search occurred after the triggering event.(as is the case here).

No mention is made in the government's brief regarding how long the government proposes the issuance would be vaild after the triggering event. To so state would be an admission that time matters.

For reasons discussed briefly below, to guide the lower courts, the court should consider including a "Grubbs Particularity Test" in their holding.
In part, the proposed "Grubbs Particularity Test" should provide lower courts guidnace in:

(1.) Limiting the remoteness in time and
(2.) Limiting the variance in timebetween the particular description submitted to the court forecasting the expected timing of the triggering event and the time the triggering event actually occured and the anticipatory warrant was served; (And impliedly requiring reasonable concordance between the predicted time, and the actual time.)
TIME MATTERS:
OBSERVATION ONE:
By submitting an application for an Anticipatory Warrant, prosecutors are admitting to the court they lack probable cause to support issuance of the same warrant at the "present time";
If Prosecutors retained a set of facts supporting issuance of a Traditional Warrant, it is likely they would seek to serve a warrant now as opposed to later.
OBSERVATION TWO:
All facts and circumstances kept constant, an anticipatory warrant has a higher degree than a traditional warrant of not being supported by the actual facts found ex-post. This likelihood of an invaild warrant being served increases with increase in time waiting for the trigger event after the warrant issues. This would seem to further support inclusion in the proposed Grubbs Particularity Test of a provision for limiting the remoteness in time from the date the application for the issue of the anticipatory warrant is considered and approved by the court.
Given:
Court issues a Traditional Warrant:
Based on totality/set of facts and circumstances
{A, B, C, D...}.
Given:
Court issues an Anticipatory Warrant:
Based on same set of facts {A,B,C, D...T ...}
Only under the anticipatory warrant scenario, contingent event "A" has yet to happen. Notice that because contingent event "A" has yet to happen, variable "T" has been added to the set of variables on which the Anticipatory warrant is premised and issued. Exogenous variable "T" represents time from the present set of facts, until the contingent event occurs, and the warrant is served. "T" is colinear with and therefore related to trigger event variable "A." "T" impliedly represents RISK not extant in the set of facts on which issuance of a traditional warrant would rest, all other variables kept constant/ ceteris paribus. Time "T" represents imputed RISK that the anticipatory warrant will be invalid because ex post, the actual fact outcome does not support the warrant. As time T increases, so does the probablity of an invalid warrant because there is more time for the other variables to change. Time "T" therefor forms an integral part of the "totality of facts and circumstances" that should be considered by the issuing court.
===
2.24.2006 1:03am
Wintermute (www):
Hey, just bring back the English writs of assistance that were so popular in the American colonies. They don't even get stale. We just need to do whatever is most convenient for the cops, because they only arrest bad people and shouldn't have to waste their precious time on technicalities. A contract can be contingent, and so can a remainder, so why not a warrant? Or does this depend upon what "upon" means?

Here's a nice annotation, BTW.

Hang in there, Orin. I and a lotta peeps looking for Circuit Judge material got your back.
2.24.2006 1:44am
Milhouse (www):
If the constitution said, "no warrants shall issue, but based on probable cause," or "no warrants shall issue, but on the grounds of probable cause," doesn't that still prohibit anticipatory warrants?
No, it doesn't. That's why you originally wrote: 'In this context, it seems to me that "upon" means "following the establishment of'; and if that's what "upon" means, then you're right.

But I don't think that is what it means. All it means, I think, is that the grounds for the warrant must add up to probable cause. So when the police tell the magistrate the facts as they know them, if he thinks they don't add up to probable cause, he must not issue the warrant, and if he does issue it then it's invalid. Similarly, if what the police told him turned out not to be facts after all, then his decision that they added up to probable cause is irrelevant, and the warrant is retroactively invalid.

But nowhere does it say that the magistrate's assesment of the facts, and decision that they constitute probable cause, and the consequent issue of the warrant, must occur after the facts themselves. All the magistrate is doing is issuing a legal opinion, based on a set of givens. If X and Y and Z are all true, then probable cause exists, otherwise it doesn't. He can do so when X and Y and Z are all true, or he can do so before they become true; if they never do, then his opinion, while still true, is irrelevant.
2.24.2006 1:44am
Defending the Indefensible:
Milhouse,

I thought I understood your argument before, but your last post has confused me. So, you are saying probable cause exists based upon all of X, Y and Z being true, but one or all of these are known not to be true at the present time. Therefore probable cause does not exist, and the warrant cannot issue. If it is anticipated that X, Y and Z will all be true at a future point, that does not make for probable cause now, and fortune telling is a messy business for a judge to be in.
2.24.2006 2:24am
Defending the Indefensible:
I think I understand better now the principle behind the anticipatory warrant, and the legal standard upon which it is premised, instead of probable cause, the probability of probable cause. Because there will probably be probable cause sometime in the future. Probably.
2.24.2006 2:31am
Justin (mail):
Once Grubbs inevitably DOES bring back the anticipatory warrant, I think what you will find is a lot of 4th Amendment claims coming to the courts about what obligations police have to make sure some of the facts an anticipatory warrant are based on havent been extinguished, destroying the probable cause (given the triggering event) BEFORE the triggering event.

It'll be interesting times for 4th Amendment guys.
2.24.2006 10:00am
BruceM (mail) (www):
The problem is WHO determines when the triggering event has occurred--a police officer or a neutral magistrate? Quite often it won't be so black and white and with an anticipatory warrant, it will be the police who make the probable cause determination, claiming that the triggering event has occurred.

Ultimately we're just opening another door to another 4th Amendment warrant "exception" whereby police officers will be permitted to say they were "reasonable" in believing that the triggering event had occurred, even though it actually didn't. So you'll have warrants issued without probable cause, executed without probable cause, but that still won't be permitted to be the basis of a motion to suppress because the officer was "reasonble" (somehow).
2.24.2006 10:36am
Justin (mail):
Well, the district court will make that decision on either summary judgment of an 1983 action (or more likely) on a motion to surpress.

The problem (and I'm still tentatively okay with these warrants at least as a trial) is that if history is a guide, the "penalty" of suppressing has led the common law to give vast discretion to the police in the past - and depending where the line is drawn, this could mean an end around the warrant process in certain circumstances.
2.24.2006 11:08am
cbmuche (mail):
What Milhouse suggests, I think, is not so unreasonable. Lets look at a concrete example: Officer Proactive appears before Judge Neutral with sufficiently particular warrant application. His accompanying affidavit reports that a particular informant (assume informant satisfies all applicable standards) has reported that specified person, who lives at specified place is dealer in specified contraband; that modus operandi of this person is to receive contraband via delivery from FL by DHL, sent to "John Q. Doe." Affidavit also reports that DHL tracking #12345 indicates a package left FL on 2/20/06, to be delivered to "John Q. Doe" which is expected to arrive 2/24/06. The question is whether on 2/21/06 Judge Neutral can sign the warrant to become effective upon the delivery of a package by DHL to the residence of specified person, OR whether on 2/24/06 someone must call Judge Neutral to inform him that a package has just been delivered to the residence and inquire if this along with other info now amounts to probable cause to search the residence? I don't see a whole lot of difference. People are concerned that Officer Proactive will have discretion in determining the trigger has occurred, but he'd have similar discretion in how he crafts his phone report from the scene which is not personally observed by Judge Neutral.

I agree with the posters: this will likely open a pandora's box of problems associated with staleness; there is a fair probability (not wholly unrelated to the Court's current makeup) that it will further expand the good faith exception, etc. But, I also agree with the opinion that the point of "issue" concerns legal effectiveness more so than when the signature is attached. And despite Defending's comment its not really the case that the warrant is issued on the probabilty of probable cause (i.e. that if the package arrives on 2/24/06 then probable cause will probably be satisfied), but the certainty of probable if, and only if the stated contingency actually occurs (note: by "certainty" I mean only the same degree of "certainty" which accompanies a finding of probable cause after the facts on which it is based have actually occurred).

In a very strict sense, I think your textual argument is quite sound. At the same time a contingent warrant, if particular in its description of the trigger and possibly self-invalidating after some time, does not strike me as violence to principles underlying the text.
2.24.2006 1:58pm
Justin (mail):
Ten monopoly bucks, though, cbm, that milhouse more generally sees himself a textualist/originalist in the Scalia mold. I've been arguing on this blog for some time that the concept that textualism/originalism actually binds a judge to follow the law despite his policy preferences is nonsense, but it is clearly even more nonsense if we allow ourselves to be structuralists or intentionalists when the text fails to justify our preferred outcomes.
2.24.2006 4:47pm
DRS:
cbmuche:
At the same time a contingent warrant, if particular in its description of the trigger and possibly self-invalidating after some time, does not strike me as violence to principles underlying the text.
Apart from the fundamental question of whether an anticipatory warrant is unconsitutional per se, you have more or less stated the secondary issue before the court.
Brief for Defendant/Respondent in Grubbs states the Question presented for review to be:

Whether warrants issued in advance of present probable cause are constitutionally infirm or, if permissible in limited circumstances, whether anticipatory warrants must particularly state the triggering condition, the occurrence of which is required for the valid operation of the warrant.
2.24.2006 5:46pm
Defending the Indefensible:
It's funny in a way that some people are trying to discover a necessity for anticipatory warrants in this modern age of telephones and instantaneous access to the judge, while no such necessity was considered in years past when it might be a few hours or more on horseback to get the judge's signature and return.
2.24.2006 10:59pm
Defending the Indefensible:
Prof. Kerr,

Probably probable cause sounds about right as a description of the legal standard at issue. I'm glad to see we're on the same wavelength here.

http://www.nyujll.org/blog/?p=99
2.25.2006 1:17pm